FEDERAL COURT OF AUSTRALIA

SZMFI v Minister for Immigration & Citizenship

[2008] FCA 1894

SZMFI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1519 of 2008

RARES J

26 NOVEMBER 2008

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

1.                  The appeal be allowed with costs.

2.                  The order made by the Federal Magistrates Court on 9 September 2008 be set aside, and, in lieu thereof, the following orders be granted:

(1)               an order in nature of an order absolute in the first instance for a writ of certiorari to quash the decision of the second respondent signed on 20 March 2008 to affirm the decision of the first respondent not to grant the applicant a protection visa;

(2)               an order in the nature of a writ of mandamus directing the second respondent to hear and determine the application for review according to law; and

(3)               the first respondent pay the applicant’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     This is an appeal from the decision of the Federal Magistrates Court refusing the appellant’s claim for constitutional writ relief in respect of the decision of the Refugee Review Tribunal signed on 20 March 2008 affirming a decision of the delegate of the Minister not to grant her a protection visa:  SZMFI v Minister for Immigration [2008] FMCA 1269.

2                     The appellant is a citizen of the People’s Republic of China and claimed to be of the Catholic faith.  She arrived in Australia in early September 2007 and applied for a protection visa in mid-October 2007.  The delegate refused to grant her a visa in early January 2008 and she applied to the tribunal for a review of that decision.

The appellant’s claims for a protection visa

3                     In her statutory declaration supporting her claim for a protection visa, the appellant said that she had to leave her home country to escape persecution by the Chinese authorities because she was Catholic and an activist for the Roman Catholic underground church.  She noted that her husband had come to Australia in 1999 leaving her, their daughter and son in China.  She claimed that in August 2004 she began working in a factory run by a Mr Chen.  The appellant claimed that his aunt was a devout Catholic.  She claimed that the aunt organised for her to attend a party on Christmas day 2004, at a secret place and that from then, she began to be involved in religious activities at the underground church, including the catechism and attending masses and small gatherings.

4                     The appellant claimed that she had been baptised in March 2005 and since then had become a devout Catholic and an activist in the underground church.  She claimed that the activities of the church had not been tolerated by the Chinese authorities, that church members were quite often subjected to persecutory activities and that her church group frequently had to change their places of worship and gathering to avoid official attention.

5                     She claimed that Mr Chen was transferred to work in a different part of China and that she went with him to work there, both in terms of her occupation and in spreading the gospel.  She claimed that she received assistance from Mr Chen’s aunt and set up three Catholic groups in nearby villages.  The appellant claimed that she was one of the main liaison persons escorting priests and sisters to spread the gospel in the area.  She claimed that on 1 March 2007 she had been interrogated for the first time by the Public Security Bureau or Chinese internal police because she had been suspected of attending an illegal gathering in a village.  She claimed that she had been persecuted during the interrogation and was beaten and mistreated cruelly for a whole day but had refused to confess.  She claimed that eventually the police released her but, subsequently, she was questioned and interrogated on about five or six occasions but on none of them were the authorities able to prosecute her.

6                     The appellant claimed that in mid-June 2007 a fellow practitioner who did not know her personally, had been arrested by the police and he had identified a young lady, by the appellant’s religious name, as being in charge of three Catholic groups in the area.  She claimed that, although the police at that time did not know her religious identity, she was concerned for her own safety and feared discovery by the police.  In mid-August 2007, she claimed that Mr Chen’s aunt was arrested by the police while participating in an occasion of secret religious worship with about 10 others.  The appellant claimed that she had a firm belief that the aunt would find it impossible not to expose her and so, she was scared.  She claimed that she went to another city where she stayed in a fellow religionist’s house and made arrangements to go overseas, obtaining her visa in late August 2007 and leaving China on 2 September.

7                     She claimed that, subsequently, Mr Chen had been interrogated by the police and, as a result, he was tortured and had exposed the appellant together with his aunt.  She claimed that Mr Chen had exposed her religious pseudonym but by the time the police came to arrest her, she had arrived in Australia where she claimed that she was able to practice as a devout Catholic.

The delegate’s decision

8                     The delegate considered her claims and noted that they lacked specific details.  The delegate found that the appellant had not established that she was a person who would be perceived by the Chinese authorities as an influential leader of the underground church and that the evidence before the delegate did not suggest she would be capable of such activity were she returned to China.  The delegate also found that the appellant had not demonstrated a genuine basis for philosophically objecting to practicing Christianity within State-controlled religious institutions in China.  The delegate found that because the appellant had been able to leave China freely using her own passport, she would not have been any interest to the Chinese authorities.

Proceedings in the tribunal – the section 424A letter

9                     Prior to the hearing to which the appellant was invited by the tribunal, it sent her a letter under s 424A of the Migration Act 1958 (Cth) inviting her comments and responses on information the tribunal considered would, subject to any comments or response she had to make, be the reason or part of the reason for affirming the decision under review.

10                  The letter noted the information that the tribunal had concerning the appellant’s ability to leave China on her own passport and the Chinese authorities’ attitude to preventing persons of interest to them, from doing so.  The tribunal pointed to that information as being relevant because it could cause the tribunal to find that she was of no interest to the Chinese authorities at the time of her departure.  It also pointed to the delay of over six weeks between the appellant’s arrival and making her application for a protection visa.  The tribunal said that this information might be relevant to a finding that she had delayed her application because she did not have a genuine fear of persecution in China and that that might cause it to question her credibility and the authenticity of her claim.

11                  The tribunal’s letter also pointed to the fact that the appellant had made an application for a visitor’s visa in China saying that she had been employed as a vice-manager of a finance department in an investment guarantee institution for the past two years and that she had been able to present evidence of substantial financial worth.  The tribunal also noted that consular officials had contacted her workplace and confirmed her working details.  The tribunal noted that, in contrast, in her application for a protection visa, the appellant had said that she had worked in a factory from August 2004.  The letter noted that this information might be relevant because it could cause the tribunal to reject her claim of having worked in a factory and thus having met Mr Chen’s aunt through that employment.  It could also cause the tribunal to question the credibility and authenticity of her claims so as to lead to rejection of her application.

12                  The tribunal’s letter also observed that the appellant had not provided any evidence of her religious activities in Australia when applying for the protection visa or during the processing of that visa by the delegate.  It said that that information was relevant because it could cause the tribunal to reject her claim that, if she were a devout Catholic, she would have been actively involved with the Catholic Church.  It went on to say that that might cause it to find that there was no real chance that she would face persecution in China due to her religion and thus she would not be entitled to a protection visa on that basis.  The letter also asked her to provide evidence of her baptism in China.

The appellant’s reply to the section 424A letter

13                  The appellant, who was then represented by a migration agent, provided a statutory declaration in response.  The declaration began by repeating a number of details in her previous statutory declaration made when applying for the protection visa.  She gave some further details about her religious activities in China.  She claimed that she had not been exposed to the authorities prior to her departure so that she would not have been of interest to, or noticed by, the authorities when she applied to leave to China.  She claimed that she had taken some time to obtain legal assistance before she applied for a protection visa.

14                  She claimed that her trip to Australia had been organised and planned by a friend and she did not get involved in these activities.  The appellant claimed that while the friend might have said that she had been the vice-manager of the investment guarantee business and provided documents to support that claim, the appellant was not aware of those matters because everything had been done by her friend.  She denied having been employed in the position of vice-manager and claimed that she had never submitted any of the documents relating to her financial worth.  She said that she would provide documentary evidence as to her religious activities in Australia and submit it to the tribunal, shortly.  She said that the police in China had taken away most of her personal documents including some photos and her certificate of baptism so she was unable to provide those to the tribunal.

The hearing before the tribunal

15                  Subsequently, the tribunal held a hearing.  The first witness the tribunal called at the hearing, with the consent of the appellant, was Father Paul McGee, the Catholic priest at the church attended by the appellant.  The tribunal recorded the evidence that Father McGee gave to it in its statement of decisions and reasons.  It said that:

“As far as he could remember, she started attending the church six to seven months ago.  He had conversations with her more recently but could not remember if he had done so from the start.  The Tribunal asked Fr McGee to comment on the [appellant’s] knowledge of Christianity or Catholicism at the time when she started attending.  He said that it was what he would expect from an average practicing person.  As a regular person coming to church, she was at ease with Catholic practice and with other members of the community.  She was familiar with the rituals and so on.  The tribunal asked Fr McGee whether his view formed when [the appellant] started attending the church at a later stage.  He said he could not say when he formed a particular judgment on the matter.  The tribunal noted that it had to determine whether [the appellant] had any exposure to Christianity or [the] Catholic Church in China or since coming to Australia and sought Fr McGee’s comment.  He said that he has no problem in making the finding that she had exposure in China.  The Tribunal asked Fr McGee on what basis he formed that view.  Fr McGee stated that in the short time that he had known the applicant, she seemed to be at home with the Catholic practice.”  (emphasis added)

16                  The tribunal then recorded its account of the oral evidence taken from the appellant.  Among other things, it canvassed the concerns it had expressed about the circumstances in which she came to leave China and dealt with her knowledge of Catholicism and Christian doctrine.  It raised with her a letter that she had provided to the tribunal from the Western Sydney Catholic Chinese community which was not on letterhead.  The tribunal then noted that if it accepted that she had been engaged in religious activities in Australia, it needed to consider whether she had done so for the purpose of strengthening her claim to be a refugee and, unless it was satisfied that she had not done so for that purpose, it had to disregard her local activities.  This observation referred, as had the s 424A letter, to the effect of the provisions of s 91R(3) of the Act.  The tribunal noted that the appellant had denied to it that she had engaged in the activities for her application and said that God knew what she had done.

The tribunal’s decision

17                  The tribunal then set out its findings and reasons concluding that the appellant was not a credible witness and had been evasive in her responses.  It said that it appeared that the appellant had memorised her statement about her religious activities in China.  It said that because of her claim that she did not involve herself in the application for a visitor’s visa, she was willing to provide false information to achieve a migration outcome or was indifferent about the provision of such information by her friend through her claimed lack of knowledge, and that these matters caused the tribunal to question her overall credibility.

18                  It noted that the appellant’s evidence was vague.  It was concerned about her explanation of the timing of events that she described in China.  The tribunal said that it was suspicious that the appellant applied for a visa after the stranger who knew her religious name had been arrested and that her visa had been granted only a few days after the aunt’s arrest while Mr Chen would confess only after she had safely left the country.  In combination, the tribunal’s concerns caused it to find she was not credible and had not been truthful concerning her description of events in China.  It rejected her account of what had happened in China.  It then said:

“The Tribunal has considered the evidence of Fr McGee about the applicant’s involvement with the Church in Australia and accepts that the applicant has been attending the church for the past six to seven months.  Fr McGee told the Tribunal that the applicant’s level of knowledge was consistent with her exposure to the church in China, however, he also stated that he could not recall having direct contact with the applicant after she started to attend the church.  In these circumstances, the Tribunal gives Fr McGee’s evidence about the applicant’s activities in China little weight.”  (emphasis added)

19                  The tribunal also rejected a photograph that the appellant presented of herself and another person dressed in religious vestments which she claimed was taken in China on the basis that it was not able to ascertain when or what in circumstances the photograph was taken.  It rejected her claims in their entirety in respect of her involvement with the underground church in China and of the alleged confessions by the stranger, Mr Chen and his aunt.  The tribunal found that the appellant had no genuine commitment to the Catholic Church in China.  The tribunal then returned to Father McGee’s evidence and the letter from the local Chinese community.  It accepted that the appellant had been attending a church in Australia since her arrival here and said:

“… this is consistent with the applicant’s religious knowledge she displayed at the hearing.  However, as the Tribunal has found the applicant not to have been a credible person and has rejected the applicant’s claim that she was involved in the Catholic Church in China, the Tribunal is not satisfied that the applicant has engaged in religious activities in Australia otherwise than for the purpose of strengthening her claim to be a refugee.  The Tribunal disregards such conduct in accordance with section 91R(3) of the Act.”

20                  The tribunal then found that the appellant would not engage in religious activities of the underground Catholic Church or any other unauthorised activities were she returned to China now, or in the reasonably foreseeable future, and accordingly found there was no real chance that she would be persecuted for reasons of religion or any other Convention reason were she to be returned to China.

The proceedings before the Federal Magistrate

21                  The appellant raised two grounds in her application for review before the Federal Magistrates Court, which she also repeated in her notice of appeal.  First, she asserted that the tribunal had failed to comply with its obligations under s 424AA of the Act and, secondly, that the tribunal had committed a jurisdictional error by denying her natural justice and exhibiting apprehended bias.  The first ground dealt with three aspects of the tribunal’s assessment of the evidence relating to:

·               the arrest of the stranger, the aunt, Mr Chen and their confessions;

·               Father McGee’s evidence (to which I will return);  and

·               the photograph. 

22                  The second ground dealt with the circumstances of:

·               the arrests;

·               the timing of her visa application;

·               the photograph;  and

·               Father McGee’s evidence.

23                  Her Honour considered all the matters raised in the grounds of appeal.  She noted that s 424AA(a) conferred a discretion, not an obligation, on the tribunal to put matters orally to an applicant for review during the course of a hearing.  Her Honour concluded, and I agree, that the tribunal’s decision record provided no indication that the tribunal sought to invoke s 424AA in its hearing by putting information to the appellant, orally, in accordance with that provision.  Her Honour also considered that there had been no breach of s 424A in this case because she found that the tribunal was not obliged to put to the appellant in writing any of the matters, the subject of the appellant’s grounds in her application to the Federal Magistrates Court.

24                  Her Honour reviewed the grounds in relation to the arrests of the appellant’s co-religionists and the timing of her application for a visa.  She concluded that these matters were not information within the meaning of either ss 424AA or 424A relying on the decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 and particularly at 616 [18].  She also referred to the Full Court’s decision in SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [27] noting that the Full Court had held that the drawing of inferences and the assessment of their relevance are more appropriately described as part of the reasoning process than as information for the purposes of these sections.

25                  Her Honour concluded that the tribunal was entitled to have regard to the photograph as a matter falling within s 424A(3)(b), that is, it was information which the appellant had given to the tribunal for the purpose of the application for review.  And, the trial judge said that in any event, the tribunal’s assessment of the weight of the photograph was entirely a matter for it.

26                  I am unable to see any error in the way in which her Honour dealt with those matters which were also the subject of the appellant’s oral submissions before me.  I reject these grounds of appeal for the reasons given by the trial judge.

27                  Next, the trial judge examined, under the second ground, the claims relating to the timing of the application for the visa and the appellant’s evidence concerning the events leading to her departure from China.  Her Honour concluded that the tribunal’s findings demonstrated no misunderstanding of the claimed sequence of events leading up to the appellant’s departure from China and, indeed, that its conclusion was not inconsistent with the appellant’s claims themselves.  I agree with that finding for the reasons her Honour gave.  In any event, an error of law is not made simply by a decision-maker making a wrong finding of fact:  Enfield City v Development Assessment Commission (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ.  Her Honour also explained that the tribunal’s concerns relating to the photograph had been explained by it to the appellant during the hearing and that ultimately its decision to afford it no weight were within its fact-finding powers.  I agree.

28                  Her Honour otherwise dismissed the claim that there had been a denial of natural justice or procedural fairness.  She said that the tribunal carefully considered the appellant’s evidence before concluding that the appellant was not credible and that the findings in relation to those matters were not susceptible of demonstrating a jurisdictional error.  I agree for the reasons that her Honour gave.

29                  Her Honour dismissed the assertion of apprehended bias on the basis that there was nothing to show that a hypothetical fair-minded lay observer who was properly informed as to the nature of the proceedings, the matters in issue, and the conduct which was said to give rise to an apprehension of bias might reasonably apprehend that the tribunal did not bring an impartial mind to its task, applying Re Refugee Review Tribunal;  Ex parte H (2001) 179 ALR 425 at 434 for 435 [28].  I agree.

The information given by Father McGee

30                  I am, however, more troubled by the tribunal’s treatment of Father McGee.  As is apparent in the passages I have emphasised above, the tribunal in its ultimate statement of findings and reasons asserted, inconsistently with its earlier account of his evidence, that Father McGee could not recall having direct contact with the appellant after she started to attend the church.  In my opinion, that finding is inconsistent with the tribunal’s earlier recording of his evidence that not only had he had conversations with the appellant more recently, he also had no problem in concluding that she had had exposure to Christianity and the Catholic Church in China.  There was no evidentiary basis identified by the tribunal pursuant to s 430(1)(d) of the Act for the tribunal’s finding that Father McGee could not recall having direct contact with the appellant after she started to attend church.

31                  However, I am prepared to read that passage more generously as having accidentally omitted the qualification that Father McGee could not recall when he first had direct contact with the appellant after she started attending church.  This would appear to accord with the tribunal’s earlier account of his evidence.

32                  Ultimately, the tribunal formed the view that the appellant’s knowledge of Catholicism and Christianity was consistent with her having obtained that knowledge in Australia.  The tribunal used that as a reason, or part of the reason, for finding that she had not practiced in China.  The tribunal did not write a s 424A letter to the appellant after the hearing.  And, the tribunal’s account of its hearing did not record that it had suggested to the appellant that:

·               the tribunal had information that Father McGee could not recall having direct contact with her after she started to attend church at all or at any particular point of time;  and

·               that information bore on what might be made of his evidence in relation to her knowledge of Christianity and Catholic doctrine and, secondly, when she might first have gained it.

33                  In its s 424A letter sent before the hearing the tribunal had flagged to the appellant that it regarded evidence of her activities in the Catholic Church in Australia as being relevant to her claims to be a devout Catholic.

34                  Having read and reread the tribunal’s decision carefully and given it the most beneficial construction I can, I am of opinion that it is clear that the tribunal regarded the evidence of Father McGee that he was not able to identify when he first had contact with the appellant as an important piece of information, undermining the overall account of the appellant to be a Christian prior to her arrival in Australia or at all. Father McGee’s evidence was evidentiary material which undermined her claim to be a Catholic and a Christian both, in Australia and in China:  SZBYR 235 ALR at 616 [18].  The tribunal rejected her claim on this point both for the purposes of s 91R(3) and generally.

35                  In my opinion, the information that Father McGee gave to the tribunal that he could not first recall when he first spoke to the appellant (or, if it be the case, that there was no typographical error in the passage in the tribunal’s reasons saying that Father McGee could not recall having direct contact with her after she started to attend the church) was information which was a reason or part of the reason for rejecting her claim.  Accordingly, the tribunal failed to comply with either ss 424AA or 424A in that it never put this information to the appellant.  Nor did it explain why the information was relevant to the review and the consequence of the tribunal relying on that information to find that Father McGee’s evidence, initially, should be given little weight and, ultimately, be rejected under s 91R(3) on the basis that the tribunal was unable to be satisfied as to the genuineness of the appellant’s conduct in Australia about which he gave primary evidence.

36                  The Minister argued that this information was not something that in its terms, amounted to rejection, denial or undermining of the appellant’s claim to be a person to whom Australia owed protection obligations in the sense identified in SZBYR 235 ALR at 615 [17].  He argued that this information from Father McGee only went to the weight which could be given, ultimately, to his evidence and was not, in effect, a basis for undermining the appellant’s claim.

37                  I reject this argument. The tribunal found initially that it gave Father McGee’s evidence little weight in the passage in its reasons prior to it coming to the ultimate conclusion of rejection of the appellant’s claims under s 91R(3) of the Act.  Although Father McGee appeared directly to corroborate the appellant’s account of having acquired the religious knowledge of a practising Catholic in China, the reason that it gave his evidence little weight was because it found that he could not recall, if not any contact with her, at least when he first had contact with her here.  In my opinion, that was evidentiary material which the tribunal derived from Father McGee’s evidence and was not simply a rationalisaton or reasoning process of the tribunal.  The evidence on which the tribunal relied as the reason or part of the reason for rejecting the claim that the appellant was a devout Catholic, or a Christian at all, before she arrived in Australia included, in a significant way, Father McGee’s inability to identify when (or if) he first had contact with her.

38                  The tribunal had found that the appellant had been attending church for the previous six or seven months before the hearing (i.e. from the time of the appellant’s arrival in Australia).  If when Father McGee first had contact with her, she was at the beginning of her attendances at church (i.e. immediately after arriving in Australia), his evidence would have been powerful corroboration that her knowledge of Catholicism and Catholic practice could only have been gained in China.  Her Honour found that this material only went to the weight of the evidence that the tribunal was prepared to accord.  For the reasons I have given, I reject that assessment.

39                  In my opinion, the tribunal was obliged to put to the appellant pursuant to ss 424A or 424AA the information Father McGee had given it that he could not recall either, any, or his first contact with her.  It is common ground that it did not and, in my opinion, the tribunal made a jurisdictional error in failing to put this information to the appellant. 

40                  This is not a case where the error could have made no difference to the outcome (see SZBYR 235 ALR 618-619 [27]-[29]).  I am of opinion that the appeal should be allowed.

Associate:                                                         Dated:  11 December 2008